TATC CEO explains role of appeal tribunal

For our March 2012 meeting COPA Flight 8 Captain Mike Shaw invited Richard Hall, the chair and CEO of the Transportation Appeal Tribunal of Canada (TATC) to come and speak to the group.

The TATC plays an important role in aviation in Canada, as it is the body that hears appeals of infractions of the CARs that are laid by Transport Canada.

Hall started his presentation by explaining what the TATC is and how it works. It started life in 1986 as the Civil Aviation Tribunal, dealing only with aviation appeals.

Later it became “multimodal” — dealing with marine appeals and soon railway appeals as well.

The TATC is a quasi-judicial body established under its own act of parliament, the Transportation Appeal Tribunal of Canada Act. It conducts reviews and appeals for aviation, marine and railway document holders and its jurisdiction also includes international bridges and tunnels.

The TATC’s guiding principles are “a commitment to openness and cooperation.” Its mandate requires it to conduct informal, expeditious and fair hearings.

The tribunal can review administrative and enforcement actions of the Minister of Transport, railway safety inspectors and the Canadian Transportation Agency under a number of federal transportation acts and regulations, including the Aeronautics Act and the CARs, Canada Marine Act, the Canada Shipping Act, 2001, Canada Transportation Act, International Bridges and Tunnels Act, Marine Transportation Security Act and related regulations, and the Railway Safety Act.

Hall emphasized “essentially, it is the TATC’s mandate to ensure that the charges laid by Transport Canada are supported by evidence, and that the individuals charged have the opportunity to have their cases heard in a fair and impartial setting.”

The TATC can review enforcement and licensing decisions. These include orders, monetary penalties and the suspension, cancellation, refusal to renew, or the refusal to issue or amend “documents of entitlement”, such as licences and medical certificates.

The TATC is headquartered in Ottawa and currently has 27 part-time members who conduct hearings and render decisions on the cases that are presented to them. These are federal government appointments, usually for three years, made by the Governor in Council.

The TATC conducts two levels of hearings. The first level is a review hearing, which is conducted by one member. The decision of a review hearing may be appealing to an appeal hearing, which is heard by a panel of three members, usually headed by the chair. There are further appeal levels available at the Federal Court, Federal Court of Appeal and ultimately the Supreme Court of Canada.

TATC hearings are usually held at the location that the alleged offence took place, or as near to it as possible, so as to provide the most convenience to the person making the appeal and also for the convenience of witnesses.

Hall recounted one case heard in a remote area that required him to travel there by canoe. Medical appeals are normally heard near where the person lives, again for convenience.

While someone making an appeal can bring a lawyer to a TATC hearing it is not required, as the procedures are intended to be informal and designed to allow the person filing the appeal to represent themselves. Hall described an example case in which a U.S. air carrier was picking up VIP passengers in Canada and taking them to a U.S. casino in Atlantic City, New Jersey, under contract to the casino. In this complex case the company was originally fined $25,000 by the Canadian Transportation Agency for running 10 flights across the border as an unlicenced charter airline.

The company claimed that these were private flights and not a commercial air service. The case hung on the question “What is a ‘publicly available’ air service within the meaning of air service as defined in section 56 of the Canada Transportation Act?”

At the single TATC member review hearing the case was found for the company, as the TATC member applied the test “could a member of the public book a flight?” and decided not.

The case went to an appeal hearing where the review decision was overturned. Hall explained, “although the Appeal Panel found that the Tribunal had jurisdiction to determine the meaning of the term ‘publicly available’, it had exceeded its jurisdiction by creating a test that was inconsistent with the principles of statutory interpretation and the intent and purpose of the CTA. Nonetheless, even if it applied the faulty test to the facts at hand, the Appeal Panel would find [the company] was operating a “publicly available” service.” The TATC review did however reduce the fine from $25,000 to $12,500.

Hall finished his presentation with a look at some TATC statistics showing how many cases they handle and of what type. In the fiscal year 2010-11, TATC handled 293 cases. With more marine, and soon railway cases to deal with, the TATC needs more members to keep up with the work load.

The TATC is currently recruiting new members. Applicants should have a strong background in aviation, rail or marine operations and have legal or medical qualifications as well. Hall is especially interested in recruiting more physicians to hear medical cases. Interested applicants can contact TATC directly and they will explain the application and appointment process.